CITATION: R. v. Moseley, 2024 ONCJ 223

DATE: January 16, 2024

Information No. 2811-998-23-28100250-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

v.

MICHAEL MOSELEY

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE K. FILLIER

on January 16, 2024, at OSHAWA, Ontario

APPEARANCES:

F. Stephens Counsel for the Crown

A. Wu Counsel for Michael Moseley

FILLIER, J. (Orally):

Michael Moseley stands charged with one count of assault cause bodily harm and one count of uttering threats to Mr. Raymond Neville. Mr. Moseley admits to having threatened Mr. Neville, but maintains that to the extent he caused bodily harm to that individual, he was acting in lawful self defence.

The central issue for me to determine is whether the Crown has proven beyond a reasonable doubt that Mr. Moseley was not acting in self defence such that he is guilty of causing bodily harm to Mr. Neville.

On behalf of the Crown, Mr. Villacci, Crown Counsel at trial urges me to reject the defendant's testimony as contrived and self-serving. He argues that the other objectively reliable evidence in this trial completely undermines the defendant's testimony and that there should be no doubt whatsoever that Mr. Moseley was not acting in self defence.

Miss Wu, on behalf of her client, argues that the Crown has not established that Mr. Moseley was not acting in self defence. She also submits that Mr. Moseley was entitled to use physical force to remove Mr. Neville from the front porch of his home under the doctrine of self defence law, which specifically does not require a person to retreat from their own dwelling if they are under attack therein.

The law

Every person who was charged with a criminal offence is presumed innocent. That presumption remains throughout the whole of the trial unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt.

The prosecution's burden of proof never shifts. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offence or offences charged beyond a reasonable doubt, then Mr. Moseley must be found not guilty.

It is often said that a reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and logically derived from the evidence or lack of evidence heard at trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is not required in order to convict. However, our Supreme Court has cautioned that proof beyond a reasonable doubt lies much closer to absolute certainty than to proof on the balance of probabilities.

The pivotal issue in this case is credibility. In assessing witness credibility and reliability, I have taken into account the general capacity of the witnesses to make their observations, to remember what they perceived, and to accurately testify to their recollections.

I have considered whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, or evasive. I am entitled to accept some, none, or all of a witness's evidence. Although this is not a traditional scenario of competing versions of events, Given Mr. Neville's complete lack of memory of what happened for most of the night in question, I must still apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991]S.C.J. No.26.

I am required to first Consider whether I believe the evidence of Mr. Moseley, who insists he acted in self defence, out of a real and genuine risk to his life. If I do believe this, then I must acquit. Further, even if I do not entirely believe the evidence of Mr. Moseley, but am left in a state of reasonable doubt on the elements of the charge, then I also must acquit. And finally, even if I completely disbelieve the defence evidence that does not automatically lead to a conviction, I must go on to consider whether the remaining evidence I do accept is sufficient to prove the elements of the offence beyond any reasonable doubt.

The credibility and reliability of a witness's testimony are factors which must be analyzed discreetly. Credibility is an assessment of the veracity or truthfulness of a witness's evidence, whereas reliability considers accuracy.

The accuracy of a witness's evidence flows from their ability to observe, recall, and recount events. A witness whose credibility is not accepted can never be considered reliable. By the same token, credibility is not a substitute for reliability. A credible witness may give evidence which is found to be unreliable.

Summary of the evidence

Raymond Neville and Jacqueline Parkman were in a domestic relationship for many years and together are raising three children. Mr. Neville suffers from severe alcoholism, which led to the demise of his romantic relationship with Ms. Parkman. They both explained that as a result of his issues with alcohol, Mr. Neville left the family residence at 13 Cedar Street in Ajax, Ontario, and rented a room for himself in neighbouring Whitby.

Notwithstanding that they are no longer in a relationship, it was clear to me that Mr. Neville and Ms. Parkman share a mutual affection for one another and continue to be united in the raising of their children. On Thursday, April 14th, 2022, Mr. Neville was at Ms. Parkman's residence on Cedar Street with 2 of his children while Ms. Parkman had taken their oldest son on a college tour out of town.

When Ms. Parkman returned home, she discovered that Mr. Neville had been consuming alcohol, which is something she will not tolerate in her home. Mr. Neville understood this and testified that he was well aware of her position and that he returned to his residence in Whitby around 6:00 p.m. There, he continued drinking until he then went to a local bar around 10:00 or 11:00 p.m. where he again continued to consume alcohol. He has no recollection of what happened after that time period.

He woke up the following day in the Intensive Care Unit of St. Michael's Hospital in Downtown Toronto feeling so badly that he assumed he had been hit by a bus. There was no dispute at trial that Mr. Neville suffered the following injuries. He had a left orbital blowout fracture to his eye. He had a laceration on his right cheek, which is approximately 5.5 centimeters. He had fractures to ribs 7, 8, and 9 on his left side as well as his 12th rib on his right side. He had isolated transverse process fractures of L2 through L5, meaning vertebrae was fractured, and he had a left posterior upper thigh superficial skin abrasion, which is reflected in the photographs tendered at trial.

While Mr. Neville has no recollection of how his injuries were sustained, Ms. Parkman was able to provide considerable insight into what had happened. Sometime around 4:00 a.m. on 15th of April 2022, Ms. Parkman and her 17 year old daughter were roused from their sleep by knocking on the front door. When the two women came downstairs, they were confronted by Mr. Moseley asking if he, being Mr. Neville, belonged to Ms. Parkman. Ultimately, Ms. Parkman and her daughter realized that he was in fact Raymond Neville, who was lying on the pavement at the bottom of the stairs, beaten, bleeding, and with his pants around his ankles and his backside bloodied.

Mr. Moseley told him that Mr. Neville had tried to break into his home so that he had "fucked him up good." Ms. Parkman testified that before Mr. Moseley left the scene, she observed him to grab Mr. Neville, threatened to kill him, spit on him, kick him and hit his head off the ground. Once Mr. Moseley left, she called 9-1-1.

At the time of these events, Mr. Moseley was Ms. Parkman's neighbour. They lived at opposite ends of a row of townhomes, all of which appear identical, with Mr. Moseley living in unit number 3 Cedar Street, and Ms. Parkman at number 13.

For his part, Mr. Neville recalled only ever meeting Mr. Moseley once in the neighbourhood when Mr. Moseley had asked him for a cigarette and Mr. Neville obliged. Ms. Parkman described interacting with Mr. Moseley every couple of days in the neighbourhood. Mr. Moseley agreed that he had only had limited interactions with Mr. Neville, but was much better acquainted with Ms. Parkman.

All Mr. Moseley really knew about Mr. Neville was that he had a terrible drinking problem as was told to him by another person in the complex. There were certainly no preexisting ill will between the two men.

According to Mr. Moseley's testimony in court, he was asleep in his home at 3 Cedar Street when he heard banging on his front door sometime after three o'clock in the morning. He described feeling immediately terrified. When he went downstairs, he said he observed a male figure on a porch with a hooded sweatshirt up over his head who he did not recognize. He could tell that the male was turning the knob and eventually admitted he was possibly trying to use a key. He testified that his immediate thought was that the male was either the Grim Reaper or someone sent there by his ex-girlfriend to rob him or kill him. He was certain the man would was armed with a weapon, possibly a knife or a gun.

In court, Mr. Moseley said that he communicated through the small window of the door with the male and was telling him to leave. He testified that the male, who we now know to be Mr. Neville, kept saying no, I'm not leaving. Mr. Moseley said his anxiety was very high at the time. At one point, he got out his phone and made two brief videos of the male at the door. Finally, Mr. Moseley said he opened the door because he thought he would take his life into his own hands and save himself from what he was certain was about to be an attempt on his life. He said he opened the door and said, "you need to leave now" to the male. According to Mr. Moseley, the male on the porch, Mr. Neville, then grabbed him by his shirt under his chin on the neck and proceeded to push Mr. Moseley backwards into his home. At this point, Mr. Moseley said he thought he was going to die and went into "save yourself" mode.

He said he pushed the male out the door. He described that Mr. Neville fell backwards down the stairs as he was holding on to Mr. Moseley. He said the two men landed on the concrete pad at the bottom of the steps with Mr. Neville taking the brunt of the fall as Mr. Moseley landed on him.

From there, according to Mr. Moseley's testimony, Mr. Neville was punching and smashing him repeatedly in the head and side of his jaw. All the while, Mr. Moseley says, he believed he was about to die. Mr. Moseley testified that he was hitting back, throwing fists everywhere, and caught Mr. Neville in the face "couple of times". Eventually, when Mr. Neville was lying laying down on the ground motionless, Mr. Moseley decided to search his pockets for weapons and to see if he could determine who his would-be hired assassin in fact was.

After Mr. Moseley removed Mr. Neville's cell phone from his pocket, he saw a photograph of Jocelyn, Mr. Neville's daughter, whom Mr. Moseley recognized as the daughter of Jacqueline from down the street. He then realized who Mr. Neville was. So under the guise of getting him to a "place of safety", he dragged Mr. Neville some 80 metres down the sidewalk and left him lying on the ground out front whilst he knocked on Jacqueline Parkman's door for about ten minutes. Part of what transpired once Ms. Parkman opened the door is captured on an audio of a video taken by her daughter, Caitlin(ph), marked in these proceedings as Exhibit 3.

Although Mr. Moseley testified that he has little memory of what happened at the Parkman residence, he outright denies having spit on or hit Mr. Neville in any way in the presence of Ms. Parkman. It never occurred to Mr. Moseley, he said, to phone the police throughout the entirety of this incident. As a result of the history he has with police, he did not believe either they or an ambulance would attend to assist.

Analysis and Findings

As has already been noted, it is not in dispute that Mr. Moseley had a physical altercation with Mr. Neville on April 15th, 2022. It is Mr. Moseley's position, however, that the force he used on Mr. Neville was for the legitimate purpose of self defence. Before a court considers whether self defence applies, the defence must demonstrate that there is an air of reality to invoking provisions of section 34.

If that is in fact established, the burden then shifts to the Crown to prove beyond a reasonable doubt that the defendant was not acting in lawful self defence. The test for determining whether there is an air of reality to the defence of self defence has both a subjective and objective component.

As set out by the Supreme Court in Cinous, 2002 SCC 29, 2002, S.C.C. 29, for the purpose of assessing air of reality, I must assume the defendant's version of events is true. The defendant's perception of the situation, namely the subjective component, must first be assessed in relation to each element of the defence, and then the objective component, that is whether those perceptions were objectively reasonable.

In order to determine the existence of an air of reality, the test is whether there is, one, evidence, and two, that evidence which a properly instructed jury acting reasonably could acquit if they believe the evidence to be true. Where the defence contains an objective reasonableness component, a judge must examine the field of factual inferences that could reasonably be drawn from the evidence.

In this case, however, given the position of Crown Counsel, I am prepared to conclude that there is at least an air of reality to the defendant's assertion that he was acting in self defence at some point in the evening during his encounter with Mr. Neville. As such, the burden shifts to the Crown to demonstrate beyond a reasonable doubt that Mr. Moseley is not entitled to rely on section 34 as a defence to his conduct. This determination will turn on my factual findings.

Assessment of the Evidence

The only evidence of self defence on the record before me comes from Mr. Moseley himself. He maintained during his testimony that he was in fear of his life and opened the door in order to tell Mr. Neville to get off his porch, but also to take his life into his own hands and send off what he was certain to be an attempt on his life.

Section 34 sets out the three factors necessary for self defence to be made out. If the Crown proves beyond a reasonable doubt that any one of those factors do not apply, the defence will fail. The section states:

34(1) A person is not guilty of an offence if:

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person.

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force.

(c) the act committed is reasonable in the circumstances.

There are several aspects of Mr. Moseley's evidence at trial that are either internally inconsistent or inconsistent with other pieces of evidence tendered at trial. In my view, Mr. Moseley's evidence at trial that he was sure the person knocking on his door in the middle of the night was there to kill him was a fabrication completely unhinged from reality.

The notion that his ex-girlfriend might have hired someone to come kill him lacked foundation whatsoever. Furthermore, all of the steps that Mr. Moseley took throughout the incident are completely inconsistent with someone who believes they are about to be murdered.

First of all, Mr. Moseley was safe and secure in his home when he heard someone at his front door in the middle of the night. He had access to a cell phone and the ability to contact police. In his initial statement to the police shortly after the events, which was captured on a body-worn camera of Officer McCubbin(ph) and tendered as an exhibit at trial, Mr. Moseley not only said nothing about believing he was about to be killed, but he also told police that he had spent at least 10 minutes talking to the person through the door telling them to leave.

I know that at trial, Mr. Moseley attempted to reduce that period to a much shorter time frame during which he was speaking to his would-be killer. I accept the time frame he gave the police on scene over what he said here in court. It hardly makes sense that if he genuinely believed that person was there to kill him, he would spend more than 10 minutes asking him to leave through what he insisted was a very weak door that he believed was about to be broken down.

The body-worn camera of Constable McCubbin shows that Mr. Moseley's door is intact with no visible damage. Furthermore, during his discussion with police, Mr. Moseley says repeatedly that he believed the person was there to break into his house and makes no mention whatsoever of believing someone was there to kill him.

At trial, Mr. Moseley said that notwithstanding his genuine belief that the person was going to kill him, he decided to open the door. He also said he believed the person was likely armed with a weapon such as a knife or a gun.

Given his certainty that he was about to fight for his life against an armed person there to murder him, it makes no sense that Mr. Moseley would have chosen not to arm himself with one of the many knives he mentioned being readily accessible in his kitchen. Ironically, Mr. Moseley went on to testify at trial that once he opened the door to Mr. Neville and was allegedly pushed back into his home, he was then desperate to get Mr. Neville back outside of the house in order to prevent him from accessing the knives in his kitchen, which could easily have been accessed and used as a weapon against him. The solution to the issue all told would have been to not open the front door.

Of course, a central feature of Mr. Moseley's testimony is that he legitimately feared for his life and had to take matters into his own hands as a result of his mistrust of police. On April 15th, after events unfolded, police attended, as I've indicated, Mr. Moseley's residence to investigate. Again, his statements made to police were conceded voluntary and filed as an exhibit on trial. After officers pointed out to Mr. Moseley, the severity of Mr. Neville's injuries, Officer McCubbin queried Mr. Moseley on why he didn't call police. His response was, "I don't call the police. I'm sorry. I don't trust police. I'm a young black man. I don't trust police."

At trial, Mr. Moseley purported to explain his particular reasons for not trusting police. First, he described a neighbour dispute with a Caucasian family living below him that had raised the specter of calling the Hells Angels and uttered racial slurs towards him. Mr. Moseley said he called police on those neighbours twice, but felt that the police response was completely inadequate. There was no suggestion, however, that the police did not in fact respond to those calls.

In addition, Mr. Moseley testified that at the age of eight, a year after coming to Canada from Guyana, there had been a fire two doors over in the townhouse complex where he then lived. He said that members of Peel Regional Police accused him of starting the fire, took him to the police station at eight years old by himself, forced him to confess to arson, and then he had an arson conviction on his record which only stopped impacting him when he turned 18.

He also said he had been harassed numerous times by the police at bars and said he honestly believed at the time of trial that if he called 9-1-1 to report a homicidal person at his door, the police would not come to assist. I find Mr. Moseley's story about being convicted of arson at the age of eight to be contrived completely.

For decades in this country and certainly in 2003 when Mr. Moseley would have been 8, the minimum age for a person to be charged and or convicted of any crime in this country has been 12. It is an impossibility that he was found guilty under the Youth Criminal Justice Act at the age of eight for arson. Therefore, it would not have been on his so called record or had any impact on him until he turned 18. I suspect that Mr. Moseley fabricated this piece of evidence in order to make his decision not to call police more compelling.

While Mr. Moseley may sincerely not trust the police for other or his own reasons, I find that there was still no basis for him to believe that police would not respond to a call for service for a would-be intruder/murderer. He recounted no experience where the police faced with an urgent and dangerous situation simply refused to assist him whatsoever.

What is also troubling about Mr. Moseley's testimony is his insistence that he did not observe Mr. Neville to have any injuries at the time he left him on the ground in front of Ms. Parkman's residence. The evidence tendered at trial by way of photographs of the scene, photographs of Mr. Neville, and the viva vocé testimony of Ms. Parkman established that after he was dropped off having been dragged down the street by Mr. Moseley, Mr. Neville was suffering from what can only be described as profound injuries. His face was swollen and bloody, as was his entire backside as a result of being dragged down the street.

I also accept the evidence of Ms. Parkman that concerns were raised regarding whether in fact the gentleman had been sexually assaulted, due to bleeding in his lower extremities and his pants being around his ankles. It is simply incredible that Mr. Moseley did not observe any of those injuries.

I found the testimony of Mr. Moseley at trial to be incredible, self serving, and replete with inconsistencies. I do not believe he thought he was about to be murdered nor do I accept his purpose for opening the door was to fight for his life. This testimony is entirely inconsistent with his actions on the night in question.

In my view, the most reliable and compelling piece of evidence of what actually transpired, however, does indeed come from Mr. Moseley himself when he did not know that he was being recorded. Exhibit 2 in these proceedings is an audio clip of a video taken by Caitlin Parkman, who had the wherewithal to record after Mr. Moseley arrived at the door with her stepfather lying on the ground.

Having listened to the audio tape multiple times in my deliberations, I find that Mr. Moseley says the following upon arrival during a discussion with Jacqueline Parkman:

"I'm sorry. Does he belong to you? He tried to break into my fucking house. Well, he has a picture of Jocelyn on his phone. Well, it looks like her. It's your baby daddy, though, right? Okay. I fucked him up pretty bad because he tried to break into my house. I didn't know who he was. He tried to open my door. I told him "no", multiple times to go away. I have it on camera. He said no, no, no. I opened the door, I kicked him down the fucking stairs and beat the shit out of him."

After uttering these words, there is silence on the audio, before it is obvious that Mr. Moseley can be heard smacking Mr. Neville in some fashion, telling him repeatedly to wake up, and eventually saying, "If you ever come to my fucking house again, I will fucking end you." Making out of course the offence of threatening.

I find that on April 15th, Mr. Moseley was disturbed by Mr. Neville trying to get into his residence in the middle of the night. I find as a fact, Mr. Moseley was not afraid for his own life, but rather irritated that Mr. Neville had the audacity to not only attend at his door, but to refuse to stop trying to enter with the key and continually knocking.

Mr. Moseley knowingly and intentionally, and not for the purpose of self defence, but for the purpose of ridding himself of the nuisance that was Mr. Neville, drunk and mistakenly at the wrong door, did exactly as he said he did, which was open the door, kick him down the stairs, beat the shit out of him as he expressly said. I do not believe Mr. Neville pushed his way in the door of Mr. Moseley's residence, nor do I believe Mr. Neville ever laid a finger on Mr. Moseley.

I find as a fact that Mr. Moseley instigated the physical altercation and exacted what can only be described as a brutal beating on Mr. Neville, which culminated in him dragging the gentleman 80 metres down the sidewalk and dumping him like garbage in front of Ms. Parkman's residence.

I also accept the evidence of Ms. Parkman that Mr. Moseley finished off the encounter by spitting on him and hitting him when he was down on the ground, bleeding from multiple parts of his body and critically injured. Mr. Moseley's disdain towards Mr. Neville is palpable from the audio recording, during which he threatens to kill Mr. Neville if he ever returns to his home.

I am satisfied beyond any doubt on all three branches of section 34 that Mr. Moseley was not acting in self defence at any point during his encounter with Mr. Neville in the early morning hours of April 15th.

Sir, you are found guilty of assault causing bodily harm and threatening.